Babu and Others vs The Excise Inspector and Another

The Hon''ble Mr. Justice K. Than kappan

Petitioners are accused in C.C.No. 844/2001 on the file of the Judicial First Class Magistrate Court, Karunagappally. Offence alleged against the petitioners are u/s 56(b) and 67-B of the Abkari Act and rules 9 and 10 of the Kerala Spirituous Preparations (Control) Rules, 1969, hereinafter referred to as ''the Act'' and ''the Rules''. In the complaint it is stated that on 24-12-1998 at about 0.45 A.M. Preventive Officer attached to the Excise Circle Office, Karunagappally and party seized vehicle bearing No. KL2-C-2196 Tata 407 along with 42 bottles containing 750 Ml. Desamoolarishtam, 18 bottles containing 375 Ml. Pachakokesavam, 750 Ml. in 48 bottles and 575 Ml. in 22 bottles Panchakolasavam used for covering cardboard cases and empty bottles in 10 ceases, 11 gunny bag with 150 empty bottles in different capacity and cash Rs. 40,500/- and a case was registered against the petitioners. It is reported that final charge is filed before the court. Learned counsel for the petitioner submits that the 4th petitioner is having license to manufacture medical and toilet preparations containing alcohol, etc. and also a license for possession and whole sale of spirituous preparation and hence question of violation of rules 9 and 10 of the Rules does not arise and even if the rules are violated, the criminal court has no jurisdiction to entertain the same. Learned counsel for the petitioner relies on a decision reported in Mariamma & Anr. v. State of Kerala & Ors. 1998(1) KLT 286 to support his case. In the above decision this Court held that violation of a condition in the license or rules made under the Abkari Act by a licensee would amount to an offence u/s 56(b) of the Abkari Act.

Section 56(b) of the Abkari Act reads as follows :-

(b) willfully, does or omits to do anything in breach of any of the conditions of his license or permit not otherwise provided for in this Act".

Rules 9 and 10 of the Rules deal with the transportation and possession of spirituous preparations. In the statement filed by the Investigating Officer it is stated that the final charge sheet was laid before the court and CW1, detecting officer was examined as PW1. As per Annexure-A3 final report, the charge filed against the petitioners was u/s 56(b) and 67B of the Act and rules 9 and 10 of the Rules. The charge against the petitioners is that the 4th respondent, being the licensee, had violated the conditions of Annexure - A5 license transporting excess quantity of spirituous preparations. As per mahazar, all the contraband articles were seized by the detecting officer. Hence, at this stage this Court is not in a position to hold that no prima facie case is made out against the petitioners.

In the above circumstances, this Court is not inclined to interfere with the proceedings in C.C. No. 844/2001 of the Judicial Magistrate of the First Class, Karunagappally at this stage. Hence, the Crl. M.C. is dismissed.